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Madden v. Antonov

United States District Court, D. Nebraska

August 31, 2014

RONALD D. MADDEN, Plaintiff,
v.
ANTON ANTONOV, AV TRANSPORTATION, INC., THE ANDERSONS, INC., BNSF RAILWAY COMPANY, Defendants.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

Plaintiff Ronald Madden's complaint against Defendant BNSF Railway Company ("BNSF") seeks recovery under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. ("FELA"), for injuries Madden sustained when the locomotive he occupied collided with a commercial truck. The accident occurred on February 15, 2012, at a railroad grade crossing on County Road 429 in Custer County, Nebraska. Among other things, the plaintiff alleges the railroad failed to adequately instruct trainmen on how to reduce the risk of injury from grade crossing collisions, and it failed to construct and maintain a reasonably safe railroad crossing at County Road 429. (Filing No. 18, at CM/ECF p. 11, ¶ 33 (e, g & i).

The following substantive motions are pending before me:

Filing No. 118: Motion to Compel Discovery
Filing No. 126: Motion for Protective Order
Filing No. 142: Motion to Continue

For the reasons discussed below, the plaintiff's motion to compel and the railroad's motion for protective order will each be granted in part, the railroad's motion to continue will be granted, and a hearing will be held to discuss further case progression.

Motion to Compel (Filing No. 118) Motion for Protective Order (Filing No. 126)

The plaintiff moves to compel BNSF to answer discovery: 1) requesting information and documentation of prior claims filed by BNSF employees for injuries sustained during grade crossing collisions; and 2) requesting information and documentation regarding other grade crossing accidents occurring in Nebraska for the past 10 years, and through the entire BNSF system for the past five years. As to the request for grade crossing information, the railroad filed a motion for protective order.

The railroad prepared and served a detailed privilege log describing all documents withheld, the author and recipients of those documents, the person currently in possession of the documents, and the basis for objecting to disclosure. (Filing No. 120-3). The plaintiff asked the court to review, in camera, "all documents identified in BNSF's Privilege Log on Pages 1 - 15 as soon as reasonably possible so as to examine the content and purpose of said documents to verify whether BNSF" is entitled to assert the privilege afforded under 23 U.S.C. § 409. (Filing No. 135, at CM/ECF p. 17). As ordered by the court, the railroad delivered a compact disc containing the documents to the chambers of the undersigned magistrate judge. (Filing No. 138). Those documents were delivered on July 9, 2014, and were uploaded on the court's CM/ECF system under seal. (Filing No. 140).

1. Discovery of information regarding prior injuries sustained by railroad employees in grade crossing accidents.

As to discovery of prior employee injury claims arising from grade crossing accidents, the plaintiff's discovery requests, and the railroad's corresponding responses are as follows:

INTERROGATORY NO. 21: Within the ten (10) years prior to the subject collision and at any time since the subject collision, please state the number of crossing collisions in the State of Nebraska that have occurred involving a train controlled and/or operated by this Defendant and state the dates, locations and mileposts of every such collision.
ANSWER: BNSF objects to this Interrogatory as overly broad and irrelevant to the claims and defenses of the parties, not reasonably calculated to lead to the discovery of relevant and admissible evidence, and beyond the scope of discovery permitted by Rule 26.
REQUEST FOR PRODUCTION NO. 32: For the past ten (10) years, produce a list of all reported claims (similar to the list attached herewith as Plaintiff's Exhibit A produced by BNSF in other litigation) involving employees of Defendant BNSF who reported sustaining injuries as a result of being involved in a crossing accident in the State of Nebraska.
RESPONSE: BNSF objects to this request on the grounds that it is overly broad and unduly burdensome. BNSF also objects to this request on the grounds that it seeks information regarding incidents and/or claims that lack the requisite "substantial similarity" with respect to time, location, employee craft, crossing conditions and configuration, instrumentalities, equipment, and other conditions and factors and therefore is not reasonably calculated to lead to the discovery of relevant and admissible evidence.
This request also seeks confidential and private medical information and non-party employees have not waived the release of their confidential information. Finally, BNSF objects to the extent this request seeks information that is attorney-client privileged, attorney-work product, or otherwise protected from disclosure pursuant to state and/or federal law, such as 49 U.S.C. § 20903, 49 U.S.C. § 20907, and 49 C.F.R. § 229.7.
REQUEST FOR PRODUCTION NO. 33: For the past five (5) years, produce a list of all reported claims (similar to the list attached herewith as Plaintiff's Exhibit A produced by BNSF in other litigation) involving employees of Defendant BNSF who reported sustaining injuries as a result of being involved in a crossing accident on BNSF's railroad system (i.e. system-wide).
RESPONSE: BNSF objects to this request on the grounds that it is overly broad and unduly burdensome. BNSF also objects to this request on the grounds that it seeks information regarding incidents and/or claims that lack the requisite "substantial similarity" with respect to time, location, employee craft, crossing conditions and configuration, instrumentalities, equipment, and other conditions and factors and therefore is not reasonably calculated to lead to the discovery of relevant and admissible evidence. This request also seeks confidential and private medical information and non-party employees have not waived the release of their confidential information. Finally, BNSF objects to the extent this request seeks information that is attorney-client privileged, attorney-work product, or otherwise protected from disclosure pursuant to state and/or federal law, such as 49 U.S.C. § 20903, 49 U.S.C. § 20907, and 49 C.F.R. § 229.7.

(Filing Nos. 120-1; 120-6).

The plaintiff claims the information requested is relevant to show the railroad was on notice that grade crossing accidents pose a risk of injury to railroad employees, and to show the frequency and extent of that risk. The plaintiff argues the railroad can collect this information by running a simple database search, and any claim of burden is specious. (Filing No. 119, at CM/ECF p. 10). In support of this argument, the plaintiff submitted a database printout from a different case which lists lawsuits filed for "BNSF engineer and conductor musculoskeletal injuries allegedly due to ride quality - loco vibration - Track conditions getting on/off moving equipment - working/walking on ballast, " (Filing No. 120-5); excerpts from a 2006 deposition of Michael Hartung-Schuster, who maintains a database of BNSF employee injury reports and explained the capability and limitations of performing a database search for injuries arising from connecting electrical cables, (Filing No. 120-10); and a BNSF interrogatory response from a different case stating a database search would be run to create a list of all employee claims and lawsuits alleging injuries resulting from dismounting locomotives. (Filing No. 120-11).

The railroad counters that "Plaintiff's motion to compel production of all claims, by all train crews over ten years involved in any type of grade crossing incidents throughout BNSF's system of 28 states and 3 countries" must be denied as overly broad, unduly burdensome, and irrelevant. BNSF further argues the plaintiff's requests for Nebraska crossing information for a timeframe of ten years, spanning from before the 2012 crossing accident and to the present, is overly broad. The railroad explains incidents and accidents which occurred after the plaintiff's accident are not relevant to the claims and defenses alleged in this case, and as to those incidents occurring prior to the accident, the plaintiff's discovery is not limited to the subject crossing accident, the same or similar type of working conditions, or the equipment involved in the plaintiff's accident. (Filing No. 127, at CM/ECF p. 16). As such, the railroad argues the discovery requests are "facially overbroad or unduly burdensome, " ...


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